Kennerly v. Shepley

• Decision Date: 31 March 1852
• Citation: 15 Mo. 640
• Parties: KENNERLY ET AL. v. SHEPLEY.
• Court: Missouri Supreme Court

15 Mo. 640

KENNERLY ET AL.

v.SHEPLEY.

Supreme Court of Missouri.

March Term, 1852.

ERROR TO ST. LOUIS CIRCUIT COURT.

Jno.R. Shepley, on the 29th of October, 1847, brought his bill in chancery, in the Circuit Court of St. Louis county(which was once or twice altered by amendment and the addition of supernumerary matter, done by leave of court), against Elisha M. Kennerly, deceased, the widow and administratrix of James Kennerly, deceased, and the heirs of said Kennerly.The bill states, in substance, that in 1823, in the United States District Court for the Missouri district, two judgments were rendered against James and Geo. H. Kennerly, the one in favor of Conryger & Prusehouse, and the other in favor of William Linn.That in 1825, executions were issued on said judgments, and levied upon the lot of ground now in question.And that on the 6th day of September, 1825, the marshal, acting under said executions, sold said lot of ground to John O'Fallon, “all of which,” says the bill, “was done in due form of law.”That the marshal did, on the 9th of September, 1825, proceed to execute a deed for the premises, to John O'Fallon, the purchaser, and on the 14th of September, did acknowledge the deed in the United States District Court, which acknowledgment is entered of record in said court.That on or about the same day, the marshal delivered the deed to O'Fallon, who paid the consideration money, without stating how much, and who kept the deed for some time; and that the deed passed to and vested in O'Fallon the interest of Kennerly in the lot.That on the 23rd of May, 1836, O'Fallon, by deed of that date, conveyed the lot to Charles R. Anderson, who afterwards conveyed it to Wm. C. Anderson; who mortgaged it to the Commercial Bank of Cincinnati; who foreclosed the mortgage by regular suit, and under their judgment, bought in the land and conveyed it to trustees of their own; and that said trustees, on the 1st of July, 1847, by deed of that date, conveyed the same to the plaintiff.“By which conveyances,” says the bill, “the title in fee simple was vested in”the plaintiff.That the said conveyances were made for valuable considerations; that the premises, ever since the execution of the deed to O'Fallon, have been in the uninterrupted possession of the plaintiff, and those under whom he claims, and that he still has possession.That the deed to O'Fallon (of 9th September, 1825) has never been recorded and cannot be, because it is lost, or has come to the possession of the defendants, or some of them, and is canceled or suppressed, as plaintiff believes.That at the date of the judgment of Conryger & Prusehouse, and of Linn, against Kennerly, he, Kennerly, was uttered insolvent, and so continued till his death, and his estate is insolvent.That the sale from O'Fallon to C. R. Anderson was made with the knowledge and consent of Kennerly, and was, in effect, a sale by him, as he received the whole or the greater part of the purchase-money.That Kennerly has since died, leaving the defendants, his widow and children, one of the children being a minor.That in consequence of the loss of the deed, he is destitute of the proper evidence of title, and his rightful ownership of the property is put in jeopardy, with reasons to show how it may be put in jeopardy That letters of administration were granted to Mrs. Kennerly, the defendant, on the 12th of October, 1841.That the administratrix, knowing that the deed from the marshal to O'Fallon was not recorded, “obtained from the Probate Court an order for sale of said premises, as still belonging to the estate of James Kennerly, deceased,” without stating when, how or for what purpose such order was made, and without producing or referring to the record thereof, and has proceeded to advertise the same for sale, exhibiting a copy of the advertisement.The bill prays an injunction, to restrain sale under the order of Probate Court, and to prevent the making of any deed, by the parties, that might affect the property; and the injunction was granted.

The first bill was demurred to, and the demurrer sustained.The amended bill was demurred to, and an agreement, by altering a date and filing record of foreclosure of mortgage deed of Anderson to the Commercial Bank, leave was given plaintiff to amend again, and upon the coming in of the answer of the defendants, leave was given to plaintiff to amend again, which was afterwards done, in substance.That before the judgment, and sale thereunder, by the marshal to O'Fallon, James Kennerly owned the lot in fee simple; and Mrs. Kennerly, had no interest therein, by the Spanish law, or any law in force at the time; and that Kennerly acquired title to the lot 12th of November, 1818.That the marshal's deed to O'Fallon is lost, and cannot be found, after diligent search.That if O'Fallon ever made a deed of the lot in question to Mrs. Kennerly, as stated by her and by Taylor and wife, defendants, it was made without consideration, and not delivered to any person with intent to pass the title.That the deed of C. R. Anderson was made for a valuable consideration, which is stated on the face of the deed; which was duly paid to Anderson; and that Anderson had no notice of the conveyance to Mrs. Kennerly, and that neither the plaintiff nor the others through whom he claims, had knowledge or notice of it.That he never heard of it till since this suit was brought; and so denies the validity of it, and alleges that it is void under the statute.

Answers were filed by all the defendants; one of them being an infant, answered by guardian ad litem, appointed on motion of the plaintiff; and one, a married woman, Mrs. Taylor, answered with her husband.The answers of the heirs are not very important, and need not be specially stated here.Mrs. Kennerly, as widow and administratrix, filed two answers.The first to the amended bill, in substance, that she is a widow and entitled to dower in Kennerly's estate, after payment of debts; believes, from information, that her husband had an interest in the lot, but does not know that he was ever divested of title.Admits the insolvency of James Kennerly, and that much of his property was sold and sacrificed; but she has no recollection of the sale of the lot in question.Has heard that the lot in question was, through the agency of some of her friends, bid in, in the name of Col. O'Fallon, at the nominal price of $10, for the purpose of having it conveyed to her or her children, and that said O'Fallon did, soon afterwards, execute a deed of said lot to her, in due form, and deliver the same, for her, to James Kennerly, her husband.She did not know, personally, of the deed, but has never relinquished any right she may have under it, and claims to be protected.Does not admit the possession of the lot, as stated in the bill, and requires proof.Admits nothing but what is expressly admitted, and waives no right of dower, or other rights in the premises in question.The answer claims the protection of the court, for herself and the heirs and creditors of James Kennerly deceased, and denies the right of plaintiff to recover in this cause, even if all the statements of the bill were true.

The amended answer of Mrs. Kennerly states, in substance, that James Kennerly, at the time of his death, was deeply indebted and insolvent.That various claims were exhibited and allowed against his estate, to the amount of $6,690 50, giving the names of the principal creditors.That the allowances were all made in the year 1841 and 1842; and that payments have been made to amount of $747 97, out of the assets of the estate; and that the remainder with interest is still due.That in discharge of her duty as administratrix, she did, on the 26th day of June, 1847, file her petition for the sale of the real estate, describing the manner of proceeding, and that, on the 10th of September, 1847, an order was made by the Probate Court, directing the said administratrix to sell the real estate of said Kennerly, being the lot in question in this suit, for the purpose of paying the debts of said Kennerly; that under said order she was about to sell, and would have sold said lot, but that she was stopped by the injunction in this caseShe claims that the order of sale was a judicial proceeding, with the force and effect of a judgment, which appropriated the property to the payment of debts, and ought not to be set aside in favor of such claim as the plaintiff's.And she files with her answer a certified copy of the record of the Probate Court.There were replications to the answers.

A good deal of testimony was given on both sides, which is all noted in the bill of exceptions.It is too voluminous to be inserted here, at large, and as parties might not agree on results and conclusions to be drawn from it, we refer to the bill of exceptions and the documents agreed to be read.Upon the whole case, the court decreed, that all the title of James Kennerly, at the date of the judgments under which the marshal's sale was had (February 7, 1823), and all the title of the defendants, and each of them, be vested in Shepley, in fee simple.And that the administratrix be enjoined perpetually from selling the land, under the said order, or any other order of the Probate Court, with a judgment for costs and award of execution.The defendants moved for a re-hearing, and filed reasons in writing, which are in the record.The court overruled the motion.The defendants excepted and bring the case here by writ of error.

BATES, for Plaintiff.

I.The bill itself is defective, and insufficient to warrant such a decree as this, if all its statements were admitted to be true in manner and form, as stated.And under this general point, first, every bill in chancery should state such facts and circumstances, being true, as necessarily lead to a decree for the plaintiff.It should state, not the truth only, but the whole truth, of all that is material to the object...